Opinion
(June Term, 1839.)
1. Where a testator, in the first clause of his will, gave certain slaves to his wife for life, and afterwards to his children, "to be equally divided between them, share and share alike," and, in a second clause gave his children all the balance of his estate, to be equally divided among them, share and share alike, and in case either one of his children should die before it arrived at lawful age, and leaving no child or children, then his or her share to be equally divided among the surviving ones": It was held, that upon the death of one of the children, all the property bequeathed to such child by the will, and not the "balance of the estate" only, mentioned in the second clause, went to the survivors, particularly as the testator, in a subsequent clause, declared that by the expression "shares of his children" he meant all that they took under his will.
2. Where a legacy is given to a described class of individuals, as to children, in general terms, and no period is appointed for the distribution of it, the legacy is due at the death of the testator; the payment of it being postponed to the end of two years after that event merely for the convenience of the executor in administering the assets. The rights, therefore, of legatees are finally settled and determined at the testator's decease. Hence, children in existence at that period, or legally considered so to be, are alone entitled to participate in the bequest. And it makes no difference in the application of the rule although the terms of the bequest be prospective, as to children begotten or to be begotten, and no particular time of payment is mentioned, or where the gift is general to children, with a condition annexed to it disposing of a child's share upon his dying under the age of twenty-one years; for the fund will nevertheless be divisible at the testator's death, which necessarily excludes afterborn children.
JOHN POWELL died in 1838, leaving a will, in the first clause of which he bequeathed several slaves to his wife for life, and afterwards to his children, to be equally divided between them, "share and share alike," and then proceeded as follows:
"Item 2: I give and bequeath all the balance of my estate to my children, to be equally divided among them, share and share alike; and in case either one of my children should die before it arrives at lawful age, and leaving no child or children, then their share to be equally divided among the surviving ones. The whole of this item is subject to a latter clause or the conditions stated in the next item or clause of my will.
"Item 3: My will and intention is that my children shall be (309) equally well provided for, and no one better than another, whether they, or any of them, take from me or under the following clause of Mrs. Mildred E. Pryor's will, viz.: `Item 2d. I leave all the balance of my estate, principally of money and slaves, to John Powell in trust for the benefit of the children of his present wife, my daughter, Mary G. Powell.' Wherefore, I direct that in case the property left by Mrs. Pryor to me, in trust for the children of my present wife, should belong to only a part of my children, he or they thus receiving property under that will shall have none of my estate, unless he or they shall pay or deliver over to my other children who may not be entitled under Mrs. Pryor's will as much of the property in value by me bequeathed and devised to him or them as will make the shares of my children not entitled equal to the shares of those entitled. By the expression, `shares,' as applied to my children who may be entitled under Mrs. Pryor's will, I mean the property which they may get under that will, added to that which I give them."
The testator left surviving him his widow, Mary G. Powell, and three children, John W. Powell, Mary E. Powell, and Martha P. Powell, the latter of whom subsequently died, and administration upon her estate was granted to Jeremiah Brinkley. Mrs. Mildred E. Pryor, whose will was referred to in that of the testator, died on 14 August, 1834, having executed her said will the day before. At that time her daughter, Mrs. Powell, had but one child, to wit, John W. Powell, but was then enciente of her second child, Mary E. Powell, Martha P. Powell, the third and last child of Mrs. Powell, was not born until more than two years afterwards.
The bill was filed by the executor of John Powell against his widow, and the two living children and the administrator of the deceased one, for the purpose of procuring the advice of the court upon the construction of the will of his testator in the following particulars: (310) 1. Whether all the property bequeathed to the children passed to the surviving children upon the death of one of them, in exclusion of the widow, or whether only that portion of the testator's property passed which was embraced in the second clause of his will, under the description of "the balance of his estate."
2. Whether under the will of Mrs. Pryor, referred to in that of the testator, the deceased child, Martha P. Powell, was entitled as one of the children of her daughter, Martha G. Powell.
B. F. Moore for plaintiff.
Badger for Mary G. Powell and the Administrator of Martha P. Powell.
Iredell for the other defendants.
The first question which the parties wish this Court to decide is whether the child Martha's portion of the vested remainder in the slaves given by Mr. Powell in his will to his wife for life passed on Martha's death to her brother and sister, John and Mary, with the "balance" of the property bequeathed to her (Martha) under the second clause in the will of her father; or whether her mother came in, as a distributee of Martha's share of the remainder of these slaves. The testator, in his will, speaks thus: "And in case either of my children should die before it arrives at lawful age, and leaving no child or children, then their share to be equally divided among the surviving ones." It is contended for the defendants, the mother and the administrator of the deceased child, that the share here mentioned was the share only of that "balance" of the testator's estate which he bequeathed to Martha in the second clause in the will. This Court is, however, of a different opinion. We think that all the property in possession or remainder, which the child Martha took as a legacy under her father's will, was, in his contemplation, "her share" of his estate; and, in the event which has happened, passed, by force of this disposition, to the surviving brother and sister. It is true that the testator says his three children shall have the property given by the second clause in his will, "share and share alike." By this expression he meant only that it should be equally divided between them. But when he comes to speak of the possible event of one of his children dying under age, he then gives (311)to the words "then their share" a more enlarged meaning. He intended, by these words, to comprehend all the property which that child, so dying, derived under his will. This intention is manifested not only by these words, but by others, in a latter part of the will, in which the testator declares what he means by a share of any of his children. The part to which we refer is that wherein, in consequence of a doubt whether the property conveyed to him in trust for his children by Mrs. Pryor's will belonged beneficially to all of them, he made a provision for producing equality, so as to make their shares, both of his and her property, equal. "By the expression, `shares,'" such is the testator's language, "as applied to my children who may be entitled under Mrs. Pryor's will, I mean the property which they may get under that will, added to that which I give them."
The second question arises on the proper construction of a clause in the will of Mrs. Mildred E. Pryor. The clause is as follows:
"Item 2d. I leave all the balance of my estate, consisting principally of money and slaves, to John Powell, in trust for the benefit of the children of his present wife, my daughter, Mary G. Powell."
At the death of Mrs. Pryor, her daughter, Mrs. Powell, had one son born (John), and she was then pregnant with her second child (Mary). Mrs. Powell subsequently had a third child (Martha), who is now dead. The question asked is whether Martha was entitled to a share of her grandmother's property, thus bequeathed.
Where a legacy is given to a described class of individuals, as to children, in general terms, and no period is appointed for the distribution of it, the legacy is due at the death of the testator; the payment of it being merely postponed to the end of two years after that event for the convenience of the executor in administering the assets. The rights, therefore, of legatees are finally settled and determined at the testator's decease. Upon this principle is founded the well established rule that children in existence at that period, or legally considered so to be, are alone entitled to participate in the bequest. 1 Roper on Legacies, 48; Vanhook v. Rogers, 7 N.C. 178; Jourdan v. Green, 16 N.C. 270; (312) Knight v. Wall, 19 N.C. 125. A child in ventre sa mere can take a share in a fund bequeathed to children under a general description of "children." Doe v. Clarke, 2 H. Black., 399; 2 Bro. Ch. Cas., 320; 3 Ves., Jr., 673; 1 Roper on Legacies, 52. It makes no difference as to the application of the rule although the terms of the bequest be prospective, and no particular time of payment is mentioned; for the fund will nevertheless be divisible at the testator's death, which necessarily excludes afterborn children. If, then, a legacy were given "to the children of my daughter, Mary, begotten or `to be begotten,' as in Spracklin v. Rainer, 1 Dick., 344, children coming into existence after the death of the testator would be excluded, 1 Roper, 49. This rule equally applies where the gift is general to children, with a condition annexed to it disposing of a child's share upon its dying under the age of twenty-one. The principle is this: the legacy being immediate to children, the period of vesting and division unite at the same point, viz., at the death of the testator; whence it follows that a child born after that event must be excluded. 1 Roper, 49; Davidson v. Dallas, 14 Ves., Jur., 576; Scott v. Harwood, 5 Madd., 332. We are of the opinion that only the children, John W. Powell and Mary E. Powell, took the legacy under the will of Mrs. Mildred E. Pryor; and that Martha P. Powell, born after the death of Mrs. Pryor, had no interest in this fund, and, consequently, nothing in it passed to her administrator.
PER CURIAM. Decree accordingly.
Cited: Nelson v. Nelson, 41 N.C. 16; Hayley v. Hayley, 61 N.C. 187.
Dist.: Hinton v. Lewis, 42 N.C. 184; Robinson v. McDiarmid, 87 N.C. 461.
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